Many DUI cases are simple. An experienced and ethical DUI attorney can identify simple cases early in the process, before you pay thousands of dollars in legal fees. This article is specific to Henry County Georgia, where I have practiced since 2007.
For every 100 DUI defendants charged in the Henry County State Court:
17 have their charge reduced to reckless driving or dismissed prior to trial
3 are convicted after a trial
3 are acquitted after a trial
77 enter a guilty plea
License suspension is an automatic consequence of a DUI conviction which the judge cannot waive. The only way to avoid license suspension is to beat your DUI charge. For those over 21, a first DUI conviction in 10 years results in a license suspension of one year, but restoration can occur after 120 days if the defendant attends DUI school, has a drug or alcohol evaluation, and pays a $200 restoration fee. A second DUI conviction in 10 years carries a five year suspension and restoration cannot occur for 18 months. Defendants with no previous DUI convictions during the past 10 years are eligible for a restricted license valid for driving to and from work and certain other activities.
Defendants who are issued a temporary drivers license (DDS Form 1205) at the time of arrest must file a petition within 10 business days of arrest to avoid the automatic suspension of their license. If no action is taken, suspension will occur automatically 30 days after arrest. A $150 filing fee must accompany this application.
The Importance of Case Evaluation
94 percent of all DUI cases in the Henry County State Court are resolved without a jury trial. Before you pay an attorney thousands of dollars to try your case, you should take a long, hard look at whether a trial is appropriate. This is why I charge a two tiered-fee: a $900 retainer to take a state court DUI case and, and an additional fee of $1,200 if I must prepare for a jury trial.
50 percent of defendants who go to trial are acquitted, but only 18 percent of defendants who do not go to trial are acquitted. Does this mean more people should have jury trials? Not necessarily. If a defendant was pulled over after weaving, is captured on video tape losing his balance during the field sobriety tests, and blew 0.12 percent on a breath test, no amount of fancy lawyering is likely to secure an acquittal. The 50% acquittal rate at trial reflects the fact that defendants with a large chance of conviction are more likely to plead guilty than defendants with beatable charges. A shrewd attorney who knows how to evaluate cases, gather exculpatory evidence and predict jury verdicts will have a higher than average acquittal rate at trial.
Do I Need an Attorney if I’m Going to Plead Guilty?
Yes. First, you may have a defense you don’t know about. Evaluating DUI cases takes both knowledge of the law and experience in observing trial outcomes. Second, even if you are ultimately convicted, there is a huge range of possible punishments. There is a huge difference between 24 hours in jail and 10 days in jail. A good attorney can help you get a punishment at the lower end of the statutory range and keep you driving to and from work.
However, a client who pleads guilty should never pay thousands of dollars in legal fees. For an experienced DUI attorney, evaluating a DUI case is routine work, much like a doctor reading an x-ray.
Two Types of DUI Charges
Under Georgia law, there are two basic types of DUI: less safe and perse.
Less Safe DUI occurs when a driver has consumed alcohol or drugs to the extent where it is “less safe" for him to operate a motor vehicle. If this sounds vague, it is. When a case goes to trial, it is up to a jury to determine whether the defendant is guilty. The jury can consider the defendant’s driving, performance on field sobriety tests, and blood alcohol content. A defendant can be convicted of less safe DUI even if he refused the breath test or the result of the breath test was less than 0.080 grams. Within very broad limits, what the jury says goes. Thus, whether a defendant is guilty of less safe DUI depends both upon the evidence and upon the idiosyncrasies of the jury. It is critical to have an attorney who is skilled in the art of jury selection.
Per Se DUI occurs when a defendant has a blood or breath alcohol content of 0.080 grams or greater. A conviction for this offense requires a properly administered blood or breath test on properly certified equipment. If the defendant refuses to take a chemical test, he generally cannot be convicted of per se DUI.
State versus Municipal Court
If a defendant is arrested in unincorporated Henry County, his case will go directly to the State Court. However, if a defendant is arrested in Hampton, Locust Grove, McDonough, or Stockbridge, his case will first be sent to municipal court.
It is often possible to strike favorable plea agreements in municipal court. Every defendant accused of DUI has the right to a jury trial. However, municipal courts cannot conduct jury trials. Accordingly, when a defendant agrees to pay a fine, municipal court prosecutors will often reduce charges or require less jail time than would state court prosecutors. This is especially true of defendants with one or more DUI convictions in the past 10 years, who often receive harsh jail sentences in state court. A defendant who is unable to negotiate a favorable plea offer in municipal court should demand a jury trial in order to have his case transferred to state court. This will permit plea negotiations to begin from scratch with a new prosecutor. Even defendants who have their cases transferred can still enter a guilty plea in state court if they negotiate an acceptable plea offer. However, defendants should be realistic about what can be achieved in state court before transferring their case. Accordingly, defendants should retain an experienced attorney with the ability to predict state court sentences and trial outcomes. Sentences in State Court are based upon the defendant’s DUI history and the severity of the offense conduct.
Both prosecutors and juries attach great weight to breath test results. Accordingly, cases are best classified by whether the defendant took a breath test and what the result was.
Refusal: In State Court, if the defendant refuses to take a blood or breath test, it is very rare for the State to reduce or dismiss the charges. However, such cases are easier to win at trial than cases where there is a high blood alcohol content “BAC" reading. Such cases usually come down to what evidence of intoxication the prosecution has. Three out of four DUI arrests in Henry County are recorded on video tape. It is critical for the defense attorney to review this tape well in advance of trial. If a defendant looks sober on the video tape and there is no evidence of unsafe driving, a defendant’s chances of acquittal are good. Conversely, if there is a videotape on which the defendant looks drunk, a jury is likely to convict. In general, roadblock cases are easier to win than cases where the defendant is pulled over for a traffic infraction because: (1) there is unlikely to be evidence of unsafe driving; and (2) it is less likely that there is a video tape. A good trial attorney can turn the absence of a videotape against the prosecution.
Low BAC Cases (0.079 or less): a good attorney can usually get such cases reduced to reckless driving. Most of the cases where the charges were reduced or dismissed are cases where the defendant took a blood or breath test and the result was 0.079 or less.
High BAC Cases (0.100 or higher): It is extremely rare for a defendant to be acquitted when the jury is informed of a test result of 0.10 or higher. In such cases, a good defense attorney will do everything possible to get the test result suppressed (thrown out). Suppression can occur when:
(1) An officer pulled the defendant over without probable cause to believe he had committed a crime or traffic offense;
(2) The defendant was stopped at a roadblock that was not properly authorized by supervisory police personnel;
(3) The chemical testing equipment was not properly certified;
(4) The defendant was not advised of his right to obtain an independent chemical test;
(5) The defendant asked for an independent chemical test and the police did not take him to a hospital to have such a test;
A motion to suppress a chemical test result is heard before trial. Thus, a defendant with a high chemical test result can attempt to suppress the test and then enter a guilty plea if this fails.
If a chemical test result of 0.10 or higher is admitted into evidence, the defendant’s odds of acquittal are less than 20%. However, if the defendant has a commercial driver’s license or knows that a DUI conviction would destroy his career, it may be worth “rolling the dice" even in the face of bad odds.
A defendant who is convicted after a jury trial will do more jail time than one who enters a guilty plea. In Henry County, a defendant who is convicted of a first time DUI after a jury trial will typically receive 3 to 10 days in jail if his BAC was below 0.15, and no one was injured.
Borderline Cases (BAC between 0.080 and 0.100): Breath testing equipment is subject to error. Results can be skewed by dozens of factors including whether the defendant exercised, what the defendant ate, whether the defendant used mouthwash, the defendant’s body temperature, the air pressure, and individual differences in the ratio between the content of a person’s breath and blood. Even when a breath test is administered perfectly, there is a 5% margin of error. Borderline cases are winnable, but require significant preparation to win. A defendant should always call an expert witness on chemical testing in a borderline case. Thus, the total cost of taking a borderline case to trial is roughly $3,000.
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